Major changes in December 2017

Facially neutral workplace rules.The Boeing Company (NLRB 12/14/2017) [Decision] overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which articulated the Board’s previous standard governing whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA). Under the prior Lutheran Heritage standard, the Board found that employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. For summary of the new standards: NLRB overrules Lutheran Heritage on facially neutral workplace rules.

Joint employers Flip Flop. Hy-Brand Industrial Contractors (NLRB 12/14/2017) [Decision] overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015) and returned to the pre-Browning Ferris standard that governed joint-employer liability. But wait! The Board vacated Hy-Brand. Hy-Brand Industrial Contractors (NLRB 02/26/2018) [PDF] because Member William Emanuel had a conflict of interest. So Browning-Ferris is still with us – until the Republicans' new majority sorts things out.

On March 19 the NLRB announced a settlement with McDonald's, an important case in which the NLRB General Counsel was trying to make the national franchisor a joint employer with its franchisees.

Micro-units. PCC Structurals (NLRB 12/15/2017) [Decision] has overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which had made it easier to form a small bargaining unit (so-called micro-unit). The Board has now returned to its traditional community-of-interest standards. Also, the NLRB's General Counsel announced an aggressive program to "consistently apply the Board’s new analysis at all stages of case processing in currently active cases." In other words, using traditional community of interest standards. Memorandum OM 18-05, "Representation Case Procedures in Light of PCC Structurals" (12/22/2017 [PDF].

Unilateral changes. Raytheon Network (NLRB 12/15/2017) [Decision] has overruled E.I. du Pont de Nemours, 364 NLRB No. 113 (2016). An employer's actions do not constitute a "change" (requiring bargaining) if they are similar in kind and degree with an established past practice consisting of comparable unilateral actions. For more, see NLRB overrules DuPont, changing the unilateral change rules

Settlements. UPMC (NLRB 12/11/2017) [Decision] overruled United States Postal Service, 364 NLRB No. 116 (2016). ALJ's are once again permitted to accept a respondent’s proposed settlement terms, over the objection of the General Counsel and charging party, if the proposed settlement terms were deemed reasonable.

Issues where change is in the wind

Below are my top predictions for additional policy changes at the NLRB. General Counsel Peter B. Robb has already shared his vision of the NLRB's future. See NLRB's GC's Roll-Back Agenda.

Class-action waivers. In D.R. Horton (2012) [Board decision] [not enforced by 5th Cir], the NLRB said that it's an unfair labor practice for an employer to require employees to agree that they will not bring a class-action or collective-action case, either in litigation or in arbitration. Federal circuit courts are split on this, and the issue is now before the US Supreme Court (Epic Systems v. Lewis, consolidated with two other cases). A decision is expected in early 2018. See

Joint representation. Miller & Anderson (2016) [Board decision] overruled Oakwood Care Center (2004) and held that a union seeking to represent employees in bargaining units that combine both solely and jointly employed employees of a single user employer are no longer required to obtain employer consent.

College students.Columbia University (2016) [Board decision] overruled Brown University (2004) and held that college student assistants are statutory employees, and the fact they are also students does not change their status as employees.

Employer's email system. Purple Communications (2014) [Board decision] (reaffirmed in 2017) overruled Register Guard (2007) and held that employees may use their employer's email system for protected communications on nonworking time.

Union dues check-off. WKYC-TV(2012) [Board decision] overruled Bethlehem Steel (1962) and held that a dues check-off provision in a collective bargaining agreement remains in force after the collective agreement has expired.

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